Crafting a more nuanced approach to image licensing

Lyza Danger Gardner contributed this image, from a Fred Meyer supermarket, to Wikipedia.

Last night, I had two separate conversations (by coincidence) with mostly-amateur photographers Lyza and Cam, who want to contribute images to Wikipedia.

Both were driven by a desire to contribute to a common repository of knowledge and beauty, and both were frustrated by Wikipedia’s requirement that their contributions be made available for commercial use.

This is not a new debate, but it’s one worth delving into a bit.

The key befuddlement, of course, is this: why would Wikipedia (and related Wikimedia Foundation projects), which is a non-profit venture both in spirit and its technical classification, require that photographers release their property for unlimited commercial use?

The answer appears to date back to the Wikimedia Foundation’s decision to use the GFDL as its basic license. I haven’t been able to uncover the deliberation that led to that decision, but the reason is generally this: we’re seeking to create an encyclopedia that can be freely republished, in many formats and with many variations, so that it can be available to an enormous number of people in an enormous number of ways.

For instance, I just installed a neat program called Quickpedia on my new cell phone. This program fills a need that Wikipedia itself hasn’t, and possibly never will: it makes it really easy to browse Wikipedia articles on my mobile phone. But the program contains advertising, making it a commercial enterprise.

If Wikipedia allowed photographers to upload content that doesn’t permit commercial use, that would mean programs like this couldn’t exist; or at least, it would massively increase the complexity of making such a program, and force the developers to create an incomplete version of Wikipedia, absent of any photos that don’t permit commercial use.

I brought this up to Lyza; she explained that as far as she’s concerned, programs like Quickpedia are Wikipedia; she’d be happy to use a license, if it were available, that permitted uses like that, but that disallow people making commercial products (advertising, calendars, etc.) that are completely unrelated to Wikipedia.

So, my question is this: is there a way for the copyleft geeks and attorneys of our community to craft a license that hews closely to Lyza’s stated desires?

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15 Responses to “Crafting a more nuanced approach to image licensing”

Doesn’t those basically sums up into sharealike noncommercial (with or without atribution)? Or at least a variation of it where noncommercial is more specifically works “not directly involving the dissemination of knowledge”?

Thats sounds like a very nice license—”Free to modify share, etc, except commercially, unless the commercial project is in the spirit of the original project, with the spirit of the original project being arbitrarially decided by “. Basically your requirements aren’t very specific. What is the spirit of the original project? what isn’t? I know I personally would buy a calander of say featured images. I also think that such a thing would be somewhat related to the goal of commons. The french wikipedia sells posters of their images, is that in spirit?

Besides that however, there is also the ideaological component. Wikipedia generally follows the Free Software ideaology when it comes to copyright (I think now its called the free-content movement, but roughly same ideas). The free software movement has generally held that non-commercial stuff is bad. It descriminates against those who are bussinesses. Why shouldn’t they be allowed to use our content as well (since our goal is to spread it). For example, sometimes bussinesses will have excerpts from wikipedia to explain something that needs explaining to their customers. As long as they give credit where credit is due, and allow others to reuse their modification, why not. As a matter of fact, I’d consider it a good thing if some company took wikipedia content, did something with it (even advertising) improved it in someway, because we get whatever improvements they make.

Lyza and Cam – however your license your creative output is beyond criticism. It came from you, and only you know how it should best be used. That said, please allow me to try to convince you to allow commercial use for your photography.

People usually feel that if any money is to be made from an image, then it should be made by its author. The reality is, there is little-to-no money in photography (even most pros only scrape by). Getty Images, Fox News and the New York Times do not use Creative Commons images. Their businesses require the lightning-fast reliability of professional shots that they know they paid to use as news breaks. That is unlikely to be your work, and if you should happen to be in the right place and right time to take a photo that becomes very valuable (e.g. you happen upon Lindsay Lohan in a bar bathroom snorting cocaine off Ellen De Generese

Denying commercial reproduction hurts exactly the kinds of people and companies that I bet you’d be glad to help: community newspapers; struggling blogs and websites; authors and writers in desperate need of a photograph for a book; artists inspired to use your image in a collage or multi-media piece; et al. That’s the kind of commercial use you’d likely see.

None of your images will likely become a huge rock band’s album cover; used in an iPhone commercial; nor become the most famous image of that subject every taken. And even if one was, chances are they’ll offer to pay you to avoid any messy litigation.

Think of all the photographs you’ve taken that you never looked at again, and can’t even imagine what cause you’d have to spend an hour looking them over. Most photography lies wasted, unseen and unused. What if a recent immigrant used your photographs to open a post card stand in a tourist spot? What if you did not need to be a Carnegie or Rockefeller to create something that could sustain another human or help them to provide for a family, but only needed to Photography actually has that potential.

When I started photographing for Wikipedia, it was a no-brainer to license my images for anyone to use. Billionaires donate parks, mansions, museums and untold sums of money to organizations and projects that benefit the public. They not only want to leave a legacy, they often want to give back. It’s unlikely that I will ever have the money of a Gates, Buffet, Rockefeller or Carnegie to undertake large public works. Instead, I tried to create a large body of stock images that were unquestionably useful.

I was constantly harangued by family and friends that I should sell my photos, especially as my photography improved and the subjects became more famous. Instead, I always released the highest resolution possible. That’s how I do it, but I think there is nothing wrong if someone releases lower-res versions, limiting their commercial usefulness. Even sharing low-res images of rare subjects, such as certain celebrities, is a generous and appreciated act on Wikipedia. It’s more rewarding if you go all the way and release the full monty.

Minor efforts to share things we will never miss (e.g. WiFi, photographs, old clothes) are effortless ways to give and possibly help someone in ways you will never appreciate, but sometimes will discover.

So I strongly encourage you to help out Wikipedia, a registered charity, with photographic illustrations that improve articles immensely. You can only do this by allowing commercial reproduction, though there are creative commons licenses you can use that set some minor limits. You can view them here:

I use Creative Commons 3.0, which I believe only requires the downstream user to ensure proper credit to the photographer. I issue a blanket waiver if artists or writers ever write to ask to leave off the credit if it interferes with their creative vision.

To recap, by photographing creative commons images and allowing commercial use, you turn something you’ll likely never use into something useful for others; you help the small business, community media, artists, writers and those with limited resources; and your small act of generosity has the potential to impact the world positively. Last, it’s extremely rewarding to me to think that for the rest of my life, my photography will pop up in obituaries, news stories, books, magazines and tributes. As I grow older, I imagine my photography will pop up unexpectedly and be a reminder that I successfully created something of value; lasting value. The peace of mind and sense of accomplishment this last reason gives me would by itself be a reason to strongly encourage you to use the CC 3.0 license and allow the broadest use possible short of Public Domain.

This was long because I used a draft blog post about this that I never published. Feel free to drop me a line.

Good responses, glad to see some varying views. David, thank you for sharing such extensive views on the matter; I don’t think there’s anybody who can speak with greater experience or authority on this matter than you.

That said, your assumption, I think, is a little wrong in Lyza’s case; she was telling me she had actually seen her work appear in some fairly high-profile advertising. Hopefully she’ll come by to tell her story in more detail.

Bawulf, I think it’s true that the distinction isn’t spelled out clearly in my post, and I don’t have a clear vision of what it is. But that doesn’t necessarily mean there isn’t an important distinction out there, that can be identified. I am hoping this discussion can move us closer to understanding what that might be.

Which brings me to Circeus. Your comment makes me realize — I think that “commercial” may be entirely the wrong way of framing the discussion. I think Lyza’s point has a bit more to do with the idea of whether the content is something that is a service to the public, as opposed to primarily serving the entity that’s publishing it. So, in the instance of Quickpedia, the republished photos are clearly of use to me; they support the company’s ability to make money, but only in a secondary fashion. This seems significantly different than using a photo as the cornerstone of an advertising campaign.

It is unfortunate that I didn’t see this sooner: The creative commons recently had an interesting survey on the meaning of ‘non-commercial’ which you and your readers may have found interesting. Unfortunately that survey is over now but the results are not out (yet? I’m unsure if they’ll ever be public).

A core complication related to “non-commercial” licenses is that that defining non-commercial in a useful way is exceptionally difficult. “Useful” in this case meaning a way which can be consistently enforced and which matches people’s wishes and expectations.

Different people often want very different things from a “non-commercial” license. Perhaps you only care about someone directly selling your work. Perhaps you care about all forms of converting your work to profit (such as using it to attract an advertising audience–and if you don’t care about that you’re a fool since advertising is increasingly THE way intellectual works are monetized today. Not including that kind of secondary income would be a lot like narrowly defining ‘commercial use’ to be usage that involves cash but not credit cards or checks). No one has managed a good solution to this lack of clarity… it’s clearly a hard problem.

But that’s not the only——or perhaps not the most significant——problem for allowing these works on Wikipedia. There is an underlying philosophical drive behind many copyleft licenses, and behind Wikimedia itself: imagine a world without the constant “tax” of copyright. Copyright indisputably does useful things, but just as indisputably these useful effects come at a large cost: collectively we have access to FAR less knowledge than we might otherwise, in order to create an incentive system that encourages production.

‘Commercial use’, no matter how you define it, is just another type of use. Sometimes people use an intellectual work to save a life; sometimes they use it to make their home pretty; sometimes they use it to bring happiness to friends; sometimes they use it to put food in their children’s bellies (or, often, multiple ways at once). When uses are inhibited there is a cost to society. (Not to mention the costs of having to figure out if the usage is permitted or not, or to litigate when there is confusion or disagreement)

The fact that the public has an unusual degree of freedom with the material in Wikipedia is arguably one of the key factors that makes Wikipedia unique and special. After all— there are now several quality encyclopaedias (and photo libraries, etc) available online at zero cost but otherwise under restrictive licensing. It does not seem unreasonable to me that our grandchildren may someday look back and concluded that the sum of re-uses which are “unlike Wikipedia” were Wikipedia’s biggest contribution to society.

Wikipedia (along with GNU/Linux and some other phenomena) is proof that you can get useful intellectual works without the normal protections of copyright. By being thin on restrictions Wikipedia also reduces the harm to society caused by copyright: at least there exists a liberally licensed alternative for some situations where traditional copyright restrictions cause unacceptable harm.

The above could be used as an argument for Wikipedia being ‘public domain’ rather than copyleft. But the belief (at least among advocates of copyleft) is that copyleft gets us closer to “copyright free” than less restrictive licensing would, because less-restrictive licensing wouldn’t completely close down the significant ways of “unfreeing” a work.

In any case, for any kind of *further* restriction to be allowed you’d need to demonstrate that the additional restriction could be expected to increase the amount of liberally licensed works enough to offset the societal harm of the restriction. In particular you also need to consider the possibility that Wikipedia’s inclusion of a somewhat-free work will significantly discourage the creation of a future completely-free work by another author. (That is, why will I bother creating a totally free new image when Wikipedia already has one, and perhaps mine might not even be used if it turns out to be a little less pretty by some subjective judgment). In other words, you can’t just apply “something is better than nothing”.

Since Wikimedia Commons already has an enormous collection of freely licensed images (over 3.7 million right now), I think it unlikely that anyone could make a compelling argument that such restrictions would further Wikimedia’s charitable social mission, even if they can do the apparently impossible and produce a useful definition of “non-commercial”.

While your example touches on image licensing, the same thing applies to text contributions.

I’ve provided several hundreds of photos and at this point I’m sure some of my contributions have been used without attribution/permission but I don’t really worry about it too much. If I was using photography to support myself or if Apple used one of my photos for one of their presentations (as they did with Diliff’s image of the Coliseum) it might be a different story, but as it stands now I consider this to be a very minor putoff.

I have actually been contacted on multiple occasions by people that wanted to purchase one of my photos for commercial use and I just gave them an unlicensed (non-GFDL, no strings attached) original image and asked that they make a donation to Wikimedia Foundation. So one could consider Wikipedia to be free advertising if they were interested in selling their images.

For Lyza and Cam I would recommend uploading lower resolution images or images that aren’t of great “value” and see how it goes. There are plenty of big and small ways to contribute based on their level of comfort.

This is an impressively thoughtful thread and I appreciate all of the new perspectives I am seeing.

For the record I use a share/share-alike non-commercial attribution license for everything I publish.

I do not see my goal in terms of dollars–as David said above there is basically zilch money in that sort of thing and I have another livelihood anyway. I think it relates to a more primal sense of control, of which we’ve culturally learned to let go with respect to non-profit entities. With commercial bodies we have more trouble.

In this case I am more worried that Wal-mart is going to start producing a line of bikinis silkscreened with my photos or something, somehow stealing my soul and cosmic meaning in the process. It’s a meta-worry, an abstract stress akin perhaps to fearing terrorists. But ingrained, hard to shake.

I am attached to specific photos not because of the weight of commerce they entail, but because of the personal nature of their expression. Releasing them into the wilderness always makes me feel a bit exposed, a nakedness I can handle in terms of college students working on term project collages and poor post-rock bands who need images for CD covers but yet take umbrage when metaphorical uber-corps have unlimited raping access. Yes–this is my own insecurity.

Am I right to feel this way? Maybe not, even if it is somewhat culturally natural. Is it reconcilable with my goals here? Probably not. Mostly now I am confused, somewhat ashamed of my own desire to hoard my own images.

I have heard and evaluated the lower-resolution approach. It seems plausible but a bit of a hack. I do still make money on that particular photo (most people are still kind enough to ask for it first).

But as a Wiki-neophyte, here are some suggestions:

1) Make the entire image upload/donation/what-the-hell-ever process understandable to idiots like me. It’s hard to find square one at this point. I understand changes for the better are in the pipeline. I mean this both in a process sense and technical one.
2) Make the licensing requirements understood. If what you’ve said above is the best way to explain the license requirements of Wikipedia, then so be it. But explain it to us poor schmucks.
3) Tell me where to start, where I’m needed. I have an awful lot of photos I’d like to help Wikipedia with, grin.

[…] Pete wrote a thoughtful post as a result of this conversation and its comment thread made me think deeply. I’d be interested in your general opinion, too. It is such a muddy issue that I had trouble coming up with a coherent comment, a snip of which is below: I am attached to specific photos not because of the weight of commerce they entail, but because of the personal nature of their expression. Releasing them into the wilderness always makes me feel a bit exposed, a nakedness I can handle in terms of college students working on term project collages and poor post-rock bands who need images for CD covers but yet take umbrage when metaphorical uber-corps have unlimited raping access. Yes–this is my own insecurity. […]

After writing this post, I delved into the history of licensing a bit. I learned that the authority for Wikipedia’s policy derives from one of the Wikimedia Foundation’s core policies. It’s not clear to me exactly when or how that policy was arrived at, but it appears that Jimmy Wales and company were committed to this definition of freedom, which includes the requirement for commercial use, from a very early date (like 2001). Implementation on Wikipedia was rather slow, as there was initially quite a shortage of free images; the policy was solidified in 2005, when much more content had been made available by photographers, etc.

I would still like a bit more of a window into Jimmy, et al’s thinking in those early days. I identify strongly with the Free Software Foundation’s general view of freedom, but I also think that this degree of specificity is perhaps a little strong for a mission statement. It seems that the goal of soliciting and disseminating information widely might require some creativity, which in turn might require a little flexibility in terms of licensing.

For instance, I think it’s a legitimate question whether we are turning away a lot of good content, from photographers who are dissuaded simply by the commercial use requirement. I don’t know the answer to it, but I think it’s a legitimate question, and I wish there were a little more room within the Foundation’s mission to consider it.

Now, on a completely different note:

I know that licenses, like any legal document, generally aspire to a high degree of clarity and simplicity. However, I wonder whether a license with a provision like the following might address some of the concerns of people like Lyza and Cam, while still fitting in with the WMF’s chosen definition of a free license:

The owner of this copyright requests, but does not require, that any commercial use of the work be communicated to him/her, and would appreciate offers of compensation where a commercial entity stands to profit from using the work.

I suspect that any attorneys in the crowd might object to this, but I’m not proposing that this aim to be legally enforceable.

Alternatively, maybe Wikimedia sites could make a space and/or a formal process that invites contributors to add such a provision, outside the formal license, but on the page that accompanies the image.

A commenter above, says “The reality is, there is little-to-no money in photography (even most pros only scrape by).”

I grant you that many photographers that try to practice their craft professionally scrape by, but in my observation, that’s because most are have poor business acumen. And the traditional haunts for photographers who want to make money at their craft but who are poor at the business side—such as newspapers—are under siege. Some of traditional photography business models, especially some of those built around copyright like stock photography, are crumbling.

But, to say that someone should license their images for any use because there’s no money in photography is a poor argument. There are lots of other perfectly good reasons, including the “Because the photographer wanted to” one. That one alone is a good one.

Then, the comment goes on to say: “None of your images will likely become a huge rock band’s album cover; used in an iPhone commercial; nor become the most famous image of that subject every taken. And even if one was, chances are they’ll offer to pay you to avoid any messy litigation.”

Actually, chances are they won’t pay. Mostly, they’ll try not to pay and then when you approach them, they’ll say “Oops, it must have been an intern that selected that shot”. They know that without registration, copyright for photographs is actually pretty weak and that they won’t face a big legal problem. Most photographs are unregistered, so they are willing to play the chances. I’ve written about this a bit at: http://duncandavidson.com/2008/04/the-copyright-conspiracy.html

And, really, Lyza’s photography is good enough that some of her images probably will be used in such a way. Really. It’s good stuff. I’m a fan.

Lastly, even though Wikipedia takes images with Attribution licensing, they bury it. I’ve had lots of uses of the images I do have on Wikipedia used without attribution. When I approach the people responsible, 100% of the time I find out that the problem is that the person using it didn’t know attribution was required. They saw it on Wikipedia and thought it was total open game. They are, except for the one niggly attribution requirement, and that information is hidden.

To me, even if I wanted to license an image to Wikipedia at this point complete with commercial use licensing—and there are some photos that I would indeed do this with—the buying of attribution is what stops me. But, that’s just me. 🙂

This is an interesting discussion… there are certainly many photographers who would contribute their images if they were only used on Wikipedia. Like Lyza, I would have no issue with my photos being used for Wikipedia or derivative works (alternate formats, etc). However the idea that someone could take a nice photo from Wikipedia and then decide to sell prints, shirts, or whatever just doesn’t sit well. As a part time professional photographer, I’m aware that the risk would be low, but the risk still exists.

We all know of the Creative Commons No Derivative Works license… it almost seems like for me I’d be comfortable with something like an “Only Derivative Works” license.

What about Attribution-Share Alike? It does allow commercial use, but only if the work it is in is freely licensed itself. Somebody could use the photos in a calendar or something, but they can’t make it seem like the photo is their work and have the calendar be copyrighted.

Over the years I’ve taken a lot of photographs. Many of them are locked into 35mm slides or negatives and I’ve not taken the time (or expense) to convert them to digital.

At this point in my life, I’ve given up the dream of being a pro-nature/wildlife photographer – so I would be thrilled to share some of my best stuff with the “crowd.” But like Lyza, I don’t think it would be right to allow another to make money off of my creative works.

But, realizing that it is unlikely that a Fortune 500 company would use my stuff, makes me feel better.

I appreciate this thread and I will feel better about sharing my stuff in the future!

It’s also clear that the present Wikimedia Foundation board is actively hostile to any consideration of using NC-licensed material as “free”. For that matter, they are actively hostile to any more than minimal use of “Fair Use” material.